Gujarat High Court
Mulani vs Union on 26 August, 2011
Author: Chief Justice
Bench: Chief Justice
Gujarat High Court Case Information System
Print
SCA/16600/2010 56/ 56 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16600 of 2010
With
SPECIAL
CIVIL APPLICATION No. 3518 of 2011
With
SPECIAL
CIVIL APPLICATION No. 6722 of 2011
With
SPECIAL
CIVIL APPLICATION No. 6723 of 2011
With
SPECIAL
CIVIL APPLICATION No. 715 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MULANI
AKASH JAYSUKHBHAI & 41 - Petitioner(s)
Versus
UNION
OF INDIA & 7 - Respondent(s)
=========================================================
Appearance
:
MR
SI NANAVATI, SR.ADVOCATE with MS ANUJA S NANAVATI
for
Petitioner(s) : 1 - 42.
NOTICE SERVED BY DS for Respondent(s) :
1,5 - 8.
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR PK JANI,
GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP for Respondent(s) : 2
- 4.
MR RUTVIJ M BHATT for Respondent(s) : 5,
MR PARESH M DARJI
for Respondent(s) :
8,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE
MR.
S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 26/08/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As common questions of facts and law are involved in the above captioned three writ petitions, the same were taken up for hearing together and are being disposed of by this common judgment and order.
In all three writ petitions, the petitioners are students pursuing their 2nd Year M.B.B.S. Degree course at respondent no.8 - College viz. K.J.Mehta General Hospital and College of Medical Sciences, Bhavnagar (hereinafter referred to as, 'the College').
These petitions depict a very sorry state of affairs at the end of respondent no.8 - College. There cannot be a better example than the present petition to demonstrate greed of a private organization, a medical college to amass wealth by commercializing medical education. In spite of the fact that the Medical Council of India decided not to continue the college (respondent no.8) as medical college and thereby refused permission for admission from 2010-2011 onwards and respondent no.8 - College thereby cannot admit any student for the academic session 2010-2011 onwards, respondent no.8 is still insisting that the students who were earlier admitted should not be transferred to any other recognized medical college and respondent no.8 - College may be allowed to impart teaching.
We have noticed that the Medical Council of India has not renewed permission to run medical college as respondent no.8 - College miserably failed to impart education due to lack of teaching and non-teaching staff, infrastructure, other facilities, etc. We have also noticed that the Delhi High Court, while deciding Letters Patent Appeal No.661/2010 and CM No.16498/2010, vide judgment and order dated 25th October 2010, gave an opportunity to respondent no.8 - College to take rectification measures and make good all the deficiencies noticed by the Medical Council of India but, in spite of this opportunity, respondent no.8 - College has failed to raise the education standards, failed to appoint teaching and non-teaching staff, infrastructure and other facilities. The Medical Council of India again refused to grant permission to start medical course for the academic session 2011-2012.
We are reminded of a very important observation of the Supreme Court which can be quoted very aptly in the present case. We are referring to a decision of the Supreme Court in the case of Medical Council of India v/s. State of Karnataka and others, reported in AIR 1998 SC 2423, wherein the Supreme Court in paragraph 30 observed as under:-
"30.
A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study."
By way of these petitions, the petitioners are seeking a writ of mandamus or any other appropriate writ or direction for transfer of their admission to any other recognized medical college and further treat the petitioners as the students of transferee college, which is either affiliated to respondent no.7 University or any other university situated in the State of Gujarat, as respondent no.8 has miserably failed to impart education due to lack of proper infrastructure like extremely poor presence of the faculty and many of the departments like Pathology, Medicines, Forensic Medicine, T.B. and Chest, Psychiatry, Skin and VD, Gynecology, etc. has almost no teaching staff and most importantly the Medical Council of India - respondent no.5 has refused to renew the approval of the College for the academic year 2010-2011.
Facts relevant for the purpose of deciding the petitions can be summarised as under:-
(a) Students passed 12th Standard Science Examination securing more than 80% marks in the year 2009. On 23rd September 2008 Shri K.J.Mehta T.B.Hospital Trust, which is running the medical college in the name and style of K.J.Mehta General Hospital and College of Medical Sciences, Bhavnagar was granted Essentiality Certificate by Government of Gujarat in statutory Form no.2 as required under sub-clause (3) of Clause (2) of the Establishment of Medical College Regulations, 1999 framed under Section 33 of the Indian Medical Council Act, 1956 (hereinafter referred to as, 'the Act' and 'the Regulations of 1999').
(b) The said certificate provides that, 'in case applicant fails to create infrastructure for the medical college as per M.C.I. norms and fresh admissions are stopped by the Central Government, the State Government shall takeover the responsibility of the students already admitted in the college with the permission of the Central Government. Clause (10) of the said certificate also provides that respondent no.8 - College shall furnish bank guarantee worth Rs.2 crores in favour of Government of Gujarat.
(c) On 10th July 2009 under Section 10(A) of the Act, letter of permission to establish a new medical college was granted in favour of respondent no.8 - College by the Government of India from the academic year 2009-2010. Clause (2) of the said permission provides that college shall apply to Medical Council of India for renewal of permission well before the commencement of the next academic session and the college shall not admit more than one batch of students against this letter of permission. Clause (3) of the said permission provides that permission is subject to bank guarantee of Rs.9.5 crores (Rs.2 crores towards medical college and Rs.7.5 crores towards hospital facilities) required to be furnished by the Trust for the establishment of medical college and hospital found to be adequate/genuine on all counts.
(d) On 23rd July 2009, the Admission Committee for Professional Medical Education Courses granted admission to the petitioners and they have completed 1st Year M.B.B.S. course.
(e) On 15th July 2010, the Medical Council of India, after considering the inspection carried out by its team on 21st/22nd June 2010, decided not to renew the permission for admission of second batch of students for the academic year 2010-2011 at respondent no.8 - College as the inspecting team found various deficiencies.
To put it elaborately, the Board of Governors considered the assessment report dated 21st and 22nd June 2010 and noted the following deficiencies :-
"I. Infrastructural facilities are inadequate as noted below:
Examination Hall
- cum - auditorium not available.
Common Rooms:
- Boys : Rooms with inadequate space area 40 sq.mt.
- Girls: One room with inadequate space area 40 sq.mt. with table tennis and carom board. Attached toilet not kept hygienically. No drinking water available.
Minor OT and labour room are very unhygienic and unkept.
The post opt.
care beds and in ward beds were also very unhygienic and no proper BMW was there.
Hostels: Hostel for boys and girls are grossly inadequately furnished and even the facilities are not available.
Mess facilities are grossly deficient. Only one common mess for boys and girls including resident doctors and faculty is available.
RMO block visited by the team does not have any toilet facilities. Also no drinking water facilities.
Sports and recreation facilities: Play ground is not available for outdoor games. Facilities are available for indoor games. Gymnasium facilities are also not available.
II. Clinical material is grossly inadequate as noted below :
The clinical material is grossly inadequate as under:
Daily Average Day of Inspection O.P.D. Attendance 800 450 to 500 Casualty Attendance 77.11% 33% Number of Admissions/Discharge 54 52 Bed Occupancy % 83.57% 50% Operative Work Number of major surgical operations Number of minor surgical operations Number of normal deliveries Number of caesarian Sections 03 02 01 09 per month 01 NIL NIL NIL Radiological Investigations X-ray Ultrasonography Special Investigations C.T.Scan O.P. I.P. 83 32 Total 56 15 Not Available O.P. I.P. 12 10 Total 10 NIL Not Available Laboratory Investigations Biochemistry Microbiology Serology Parasitology Haemotology Histopathology Cytopathology Others 158 132 5.6)Per month 58.7) 4.27) 176.26 272.13 176.26 78 80 Nil 02 Nil At the time of inspection, there were 04 patients in the central collection centre.
Available OPD attendance of 450 is inadequate.
Bed occupancy is 50% as against the requirement of 80%, which is inadequate.
The figure of investigations do not tally with the available patients strength.
Operation theater unit:-
- Multiparameter Monitor (with capnograph) - No
- Respiratory Gas Monitor - No
- Infusion Pump - No
- Drip Infusion Pump - No 05 major operation theaters are available as against the requirement of 7, which is inadequate.
Only 03 NICU beds are available against the requirement of 5 and there is no Respiratory Intensive Care Unit.
3 static units are available as against the requirement of 4 static units of 2x300mA, 1x500 mA & 1x800 mA with IITV.
Microbiology Department:
The Bacteriological samples and drinking water was kept in the same refrigerator. No register was maintained about culture/sensitivity records.
III. General observations of the assessors which is as under:-
Though there is no shortage of required teaching faculty in various departments as per the requirement for 1st renewal (2nd batch) for 150 seats, but it is noted that approx. 1/3 of the faculty/resident joined on 5th June, 2010 (just before the assessment), approx. 10% joined in the month of Feb.2010.
Further it is noted that approx. 1/3 of faculty resides in Bhavnagar and comes daily. 03 or 04 senior faculty member comes from Ahmedabad daily which is quite impractical.
The teachers are reported to be not full time and many are steadily coming from far of cities.
IV. Other deficiencies pointed out in the assessment report.
In view of above, the Board of Governors decided not to renew the permission for admission of 2nd batch of students for the academic session 2010-2011 at K.J.Mehta General Hospital & College of Medical Sciences, Amargadh, Gujarat."
As if the above referred deficiencies were not sufficient, the Medical Council of India, vide letter dated 22nd September 2010, informed respondent no.8 - College that the Board of Governors have decided not to renew the permission for admission of second batch of students for the academic session 2010-2011. While informing the College, the Medical Council of India was constrained to observe in the letter as under :
"Whereas Board of Governors heard the representative of the K.J.Mehta General Hospital & College of Medical Sciences, Amargarh on 17.08.2010 and decided to assess the K.J.Mehta General Hospital & College of Medical Sciences, Amargarh by sending a team of assessors for fresh assessment/inspection.
Whereas on 18.09.2010, the team of assessors assessed the faculty position and found that only 44 of the teaching faculty are available as against the requirement of 129. The team of assessors was prevented from carrying out further inspection of the college by one Mr.Suresh Shah, Vice-president of the trust which runs the hospital. The Assessors have given the report that they were prevented from carrying out the assessment due to deficiencies in the college."
(f) In July 2010, the Board of Governors of Medical Council of India declared a list of approval for medical colleges across India and excluded respondent no.8 - College in the list of medical colleges in India denying permission.
(g) On 12th August 2010, respondent no.8 - College challenged the decision of the Medical Council of India for not renewing the permission for the second batch, by filing a Writ Petition (civil) No.5495/2010 in the Hon'ble High Court of Delhi. The High Court of Delhi was pleased to direct the Medical Council of India to grant an opportunity of hearing to the college and attached hospitals and submitting other records and take a fresh decision as to whether the college was entitled to renewal of permission to admit students for the academic year 2010-2011 or not. This litigation before the High Court of Delhi ultimately ended with an order passed by Division Bench in Letters Patent Appeal No.661/2010 dated 25th October 2010, wherein consensus was arrived at between the Medical Council of India and the College.
After the litigation before the Delhi High Court came to an end, the Medical Council of India, vide letter dated 20th October 2010 addressed to respondent no.8 - College, informed that the Council's Inspectors will be visiting the College between 1st November 2010 and 28th February 2011 and the College would be obliged to comply with all the necessary requirements like submission of declaration forms of the teaching faculty and senior residents on roll along with the standard inspection form A and form B, etc. Shockingly, respondent no.8 - College, vide letter dated 30th January 2011, informed the Medical Council of India that they have not been able to meet the infrastructure requirements for the second renewal (3rd batch) and the College would inform the Medical Council of India for carrying out inspection as and when the same would be ready because of which the Medical Council of India did not proceed for any renewal procedure for the same. The College informed the Medical Council of India that as soon as the infrastructure requirement is ready, they will inform the Medical Council of India and, thereafter, the procedure for assessment of the College may be undertaken.
In the mean time, out of 148 students, 127 students passed the 1st Year M.B.B.S. Examination which was conducted by Bhavnagar University for the academic year 2009-2010. The petitioners paid the fees for the first term of the academic year 2010-2011.
As the renewal of permission was refused and the name of respondent no.8
- College was not found on the website of the Medical Council of India as no educational activities were being imparted for want of teaching faculties as well as there were no patients in the hospital for clinical subjects, the petitioners had no option but to come before this Court seeking appropriate relief in the matter.
As this is a litigation relating to students and career of about 148 students is at stake, this Court tried its best to see that the entire controversy is resolved at the earliest in the interest of the students with the cooperation of the State Government as well as the Medical Council of India. There is no element of doubt that respondent no.8 - College has failed in all respects. As a college respondent no.8 ought to have been conscious that for their own personal gain they could not have played with the career of 148 students. In spite of voluminous evidence on record to suggest that respondent no.8 - College has failed to impart education, they thought fit to oppose these petitions vehemently reiterating before this Court that they have the infrastructure facilities and they are in a position to impart education.
In the interest of students and to find out amicable solution to the problem, this Court requested Dr.Sangeeta Sharma, Secretary, Medical Council of India to remain present and assist the Court as to how the Medical Council of India would like to resolve the issue.
On 4th May 2011, Dr.Sangeeta Sharma, Secretary, Medical Council of India remained present and informed the Court that the College has not yet got the renewal of recognition. She further informed that the Medical Council of India is ready to accommodate the students in some other State Government recognized colleges within the State. For this purpose, the State should make a proposal before the Medical Council of India for increase in the number of students along with their seats.
On 10th May 2011, the matter was again taken up for further hearing, and on that day, this Court passed the following order :-
"Taking into consideration the order of the Supreme Court, the stand taken by the Medical Council of India that the Medical College has not yet got the renewal of recognition and the anxiety of the students who are still not knowing what is their future, we are of the view that the matter should be heard immediately and in the mean time, the State Government should file an affidavit giving the details of the Government Medical Colleges and other Medical Colleges run by the local authorities within the State of Gujarat where, if so required by an order of this Court, the intake of the number of students can be increased alongwith their seats, as suggested by the Medical Council of India and as per the decision of the Supreme Court and in terms of the decision of the Supreme Court in Asheesh Pratap Singh vs. M Sachdev (supra). The affidavit should be filed within three weeks."
Respondent nos.2 and 3 i.e. the State of Gujarat and the Health & Family Department have filed their reply taking the stand as below :
"I further submit that as per the Regulations of the Medical Council of India, transfer of only 5% of the students of a particular medical college after 1st MBBS is permitted from that particular medical college to another medical college. However, this migration has to be within one month of declaration of the 1st MBBS result. Since this is not the case for the petitioners here, therefore bound by the Medical Council of India Regulations, the State Government cannot take the responsibility of 148 students for the purpose of transferring them to another medical college.
I say and submit that there are only 6 Government Medical Colleges in the State, with the permitted annual intake of 955 MBBS seats. There are 3 medical colleges under the Ahmedabad Municipal Corporation and Surat Municipal Corporation and 3 self-finance colleges and 1 self-finance college (Deemed University). The requisite infrastructure, teaching facilities and faculties etc, as per MCI norms, is available for 955 MBBS students. In view of this, the State Government is not in a position to accommodate 148 students of K.J.Medical College for further medical education."
Once again, a further affidavit has been filed by the State Government trying to bring to the notice of this Court the difficulties and anomalies which would arise on allotting the students of respondent no.8 - College to other institutes run by the local bodies and/or the State Government. In the said affidavit, it has been observed as under :-
"In the order of merit, the students having secured highest marks at 12th Science and GUJCET seek and procure admission in the State managed medical colleges. Copy of the merit list of the concerned year would show that students having highest percentile ranking have opted for Local Bodies or Government managed medical colleges. In so far as the present petitioners are concerned, in terms of the order of merit they stand substantially lower in merit to those who have secured admission in State medical colleges. It is an admitted position that students higher in merit opt for State managed medical colleges as against the self-finance institutes which are opted for by the students having secured far less percentage in terms of marking. The students of B.J.Medical College have secured on an average 94.10% marking as against the students of K.J.Mehta General Hospital who have secured 81% of marking. Placing students of K.J.Mehta General Hospital at par with those of B.J.Medical College and other State run medical institutes would be giving unfair advantage to these students, as well as depriving other students having procured admission in other self-finance institutes from availing of similar such benefits. Procedural lapses by T.B. Hospital Trust managing the K.J.Mehta General Hospital cannot give a premium to the students of K.J.Mehta General Hospital and the same would run counter to the principles of equality, justice and fair play.
I say and submit that the disparity in the fee struture is also a matter for the kind consideration of this Hon'ble Court since every seat in the Stte running college is at an extreme premium and with a lot of efforts students manage to procure admission in these premium seats. The disparity in fee structure also is a matter of concern since students studying in other self-finance colleges are deprived of similar such benefits. Whereas, on account of default of the institute in complying with the norms, the students of the said institute would gain undue advantage. Permitting the institute - K.J.Mehta General Hospital run by K.J.Mehta T.B. Hospital Trust to commit such irregularities and then pass off their responsibilities would encourage such institutes to continue perpetrate the breach of MCI norms.
Institutes run by the State charge nominal fees, for example B.J.Medical College charges fees to the tune of Rs.6,000/- per year as against K.J.Medical General Hospital run by K.J.Mehta T.B.Hospital Trust, Amargadh, Bhavnagar which charges Rs.2.75 lakh annually.
It is most respectfully submitted that in terms of the directions issued by the Hon'ble High Court, in the event of additional students being admitted in the second year, the number of students so admitted would have to be adjusted in the subsequent year such that the intake capacity is within that prescribed by the Medical Council of India. For example if 100 students of the first year MBBS are to pass out and be admitted in the second year of MBBS and 50 more students are to be admitted from amongst the present petitioners in the next year, the intake capacity of the institute shall stand reduced to 50 on account of having admitted 50 more students in the second year. This would seriously jeopardize the interest of the institutes of the State since the intake capacity of new students would stand reduced.
I say and submit that the petitioners have made a categorical statement before this Hon'ble Court that the State Government has a deposit of Rs.6 crores and the said amount could be used to build up the infrastructure in any of the State managed medical college if so deemed necessary. I say and submit that the said fact is categorically denied. There is no deposit of K.J.Mehta General Hospital lying with the State Government. As on date, K.J.Mehta General Hospital in terms of Essentiality Certificate was required to furnish bank guarantee of Rs.2 crores in favour of the State Government, however, the said bank guarantee has also not been furnished till date. As on date there is no amount lying deposited with the State Government. K.J.Mehta General Hospital has, however, furnished a bank guarantee to the MCI to the extent of Rs.9.5 crores and such amount is lying with the MCI.
In view of the above referred facts whilst the State Government is conscious of the predicament of the students considering the various aspects of the matter including the disparity of the marks and merit of the students, the fee structure, the requirement of adjusting these students against the future intake of each of the institute. It is most humbly and respectfully submitted that the workable solution arrived at by this Hon'ble Court in Special Civil Application No.2621 of 2009 vide order dated 22.4.2010 be adopted, a Committee headed by Dean, B.J.Medical College, Ahmedabad, Joint Secretary, Health & Family Welfare Department, Government of Gujarat, a representative from University, Dean of Kesarsal Medical College, a representative of the Trust, be constituted in terms of the said order and ensure the norms prescribed by the MCI are complied with, the education of the students does not suffer."
Thereafter, the petitioners by way of an affidavit-in-rejoinder brought to the notice of this Court that 117 seats as on today are vacant in the second year MBBS course in six Government colleges. The details as produced by them in their rejoinder are as under :-
Name of College Intake capacity Vacancy in the Second MBBS.
B.J.Medical College, Ahmedabad 250 21 M.P.Shah Medical College, Jamnagar 175 44 Bhavnagar Govt. College 100 04 Baroda Medical College, Vadodara 150 21 Pandit Dindayal Medical College, Rajkot 100 23 Surat Govt.Medical College 120 04 Total seats available for allocation to petitioners.117
Thereafter, the learned Government Pleader, on instruction from Dr.P.D.Vithalani, Additional Director, Medical Education, and Mr.Dinesh Parmar, Under Secretary, Health Department, informed the Court that recently two medical colleges i.e. (1) GMERS Medical College, Sola, Ahmedabad, and (2) GMERS Medical College, Gotri, Vadodara have been opened in the State. He further informed that the State Government may not have objection to accommodate the students in the said two medical colleges which have been recently granted recognition for one year by the Medical Council of India.
Under the circumstances, we directed the Medical Council of India and the Central Government to file affidavit and state as to why the Court may not direct the Medical Council of India and the Central Government to grant permission to the management of both GMERS Medical College, Sola, Ahmedabad and GMERS Medical College, Gotri, Vadodara to accommodate the petitioners - students and other similarly situated students of respondent no.8 - College in the second MBBS course and those who are unsuccessful in the first MBBS course and if necessary, the Medical Council of India will increase such number of seats. We also directed that the Board of Governors of the Medical Council of India shall hold an urgent meeting and take a decision. We also clarified that if it was not possible to accommodate the petitioners - students in those two Medical Colleges then the Medical Council of India shall give the names of such recognized Medical Colleges in which the students can be accommodated for which the State Government may write a formal letter for increase in the numbers of seats.
The Medical Council of India also filed its reply in this regard and took the stand as below :-
"That it is respectfully submitted that in newly established medical colleges, there would not be sufficient clinical material, infrastructure and number of teachers to accommodate the students in second year of MBBS course which require higher clinical material, infrastructure and teachers. Therefore, it would not be permissible in law to permit the students of K.J.Mehta Medical College to be admitted in the second year of MBBS course in newly established medical colleges. There is no provision in I.M.C. Act, 1956 and Regulations framed thereunder to allow admission of students in colleges in 1st year M.B.B.S. Course. Therefore, in accordance with law, the Board of Governors is not in position to permit the students of K.J.Mehta Medical College to be admitted in second year.
That it is respectfully submitted that the concept of renewal of permission in Dental College which is similar to Medical College has been discussed by the Hon'ble Supreme Court in the case of Priya Darshni Dental College and Hospital versus Union of India, (2011)4 SCC 623, the Hon'ble Supreme Court in paragraph 25 has discussed the above sadi concept which is quoted hereinunder for ready reference:
"25.
The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the students strength will increase. If the permitted intake is 100, usually there will be 100 students in the first year, 200 students in the second year, 200 students in the third year, 400 students in the fourth year and 500 students in the fifth year. Thereafter, the strength may remain constant. As the strength increases gradually every year, correspondingly the infrastructure and faculty will have to be increased."
That it is respectfully submitted that the infrastructure requirements of the medical college at the stage of 1st renewal of permission as per the Regulation of MCI for admitting the students in second batch of M.B.B.S. are higher than at the stage of letter of permission. Therefore, without meeting the infrastructure and other requirements of 1st renewal of permission, the teaching of the students of K.J.Mehta in newly established college would neither be in accordance with statutory clearances already accorded nor in the interest of maintaining minimum standards of medical education as prescribed under the IMC Act 1956.
That it is respectfully submitted that the issue was placed before the Board of Governors after the order of this Hon'ble Court and the Board in view of the above facts decided that it is for the State Government to act in accordance with Essentiality Certificate and submit a proposal to the said effect to the Medical Council of India.
That it is respectfully submitted that the State Government has given the undertaking in the form of Essentiality Certificate that it would fulfill the requirement of the Regulation and, therefore, it is the primary responsibility of the State to accommodate these students in recognized medical colleges of the State Government in view of the Essentiality Certificate issued by the State of Gujarat."
Taking into consideration the stand taken by the Medical Council of India, we once again requested the Secretary, Medical Council of India to remain present and assist the Court as to how the Medical Council of India would like now to resolve the dispute. Dr.Sangeeta Sharma, Secretary, Medical Council of India stated that the Medical Council of India is ready to accommodate the petitioners-students in those recognized State Government Medical Colleges. If necessary, students can be accommodated along with their seats as per the decision of the Supreme Court of India in the case of Asheesh Pratap Singh v/s. M.Sachdev, reported in 2003(2) SCC 409, given in similar situation. She further informed the Court that the seats will lapse after the students are promoted to higher course and once they come out successful from the college. She further submitted that the State Government is the competent authority to give details of recognized Government Medical Colleges where the students can be accommodated.
Taking into account the interest of the students and the fact that respondent no.8 - College having not been further recognized for session 2011-2012 by the Medical Council of India and also taking into consideration the judgments of the Supreme Court in the case of Asheesh Pratap Singh (supra); Government of Andhra Pradesh and another v/s. Medivial, reported in 2004(1) SCC 86; and AIR 2001 Karnataka 337, we passed the following order on 12th July 2011, which reads as under:-
"The State Government and its concerned Officers are directed to provide the list of recognized Government Medical Colleges in the State where petitioners and other similarly situated students can be accommodated in M.B.B.S. Course. Those students passed First M.B.B.S. Course from K.J.Mehta General Hospital and Medical Sciences, Bhavnagar, will have to be accommodated in the Second Year. Those who could not be successful in the First M.B.B.S. Examination while studying in the K.J.Mehta General Hospital and Medical Sciences, Bhavnagar, they will have to be accommodated in the First Year M.B.B.S. Course.
The respondents are also directed to state why State Government will not accommodate all the students of M.B.B.S. Course of K.J.Mehta General Hospital and Medical Sciences, Bhavnagar, in recognized Government Medical Colleges. If there is no seat to accommodate them, then the students may be accommodated along with their respective seats. In such case, on promotion to the next higher Course, the seat of the lower Course of the transferred College shall stand abolished and it will stand upgraded to the next higher M.B.B.S. Course.
For example, if a student is accommodated in the First M.B.B.S. Course along with his seats in one of the Government Colleges, say B.J.Medical College, Ahmedabad and later on promoted to the Second M.B.B.S. Course, the seat with which he is accommodated in B.J.Medical College, Ahmedabad will stand abolished for the First M.B.B.S. Course and shall stand upgraded for Second M.B.B.S. Course. Similarly, on promotion to Third M.B.B.S. Course, the seat will stand abolished in the Second M.B.B.S. Course and stand upgraded for Third M.B.B.S. Course. This will continue till he passes out M.B.B.S. Course successfully. Once the student comes out successful, the seat finally will stand abolished. Thus, there may be a temporary increase of seat in one or other Government Medical Colleges for the present, which will stand upgraded on passing out of student to the higher Course and finally stand abolished and thereby in no manner the total number of seats of such recognized Government Medical College will increase, for which permission granted by Medical Council of India. There an example, that an institution has been granted permission to admit 100 M.B.B.S. students and 10 students are allowed to be admitted in the second year by adjustment in view of the peculiar situation, then for the purpose of second year, 10 seats will stand increased to 110 (100 + 10). Next year if out of 10 accommodated students, 9 students are promoted to the third year, then 9 seats will stand upgraded for the third year M.B.B.S. Course and one seat will continue to remain for second M.B.B.S. Course. Similarly, if they are promoted to higher M.B.B.S. Course, the seat will be upgraded accordingly. The moment students come out successful in the Course, their respective seats will stand abolished, thereby the strength of the institution will always remain 100 till by special order they get permission for further increasing the seats. If the Medical Council of India gives such permission, it will not be treated to be additional seat for the purpose of such recognized Government Medical Colleges, but it will be treated to be adhoc arrangement to accommodate an M.B.B.S. student of another college.
We may make it clear that there will be approximately about 148-150 students who will have to be accommodated in the recognized Government Medical Colleges.
The matter being urgent, immediate verification be made by the State Government who will provide lists of recognized Government Medical Colleges of the State and will file affidavit.
The Medical Council of India will also file additional affidavit in terms with the stand taken by Dr.Sangeeta Sharma, Secretary, Medical Council of India, before this Court. Post the matter for further hearing on 18th July, 2011 at 2.30 P.M."
After our order referred to above dated 12th July 2011, the State Government, through its Under Secretary, Health and Family Welfare Department, filed an affidavit highlighting some of the problems and anomalies which would arise on allotting the students of respondent no.8 - College to other institute run by the local bodies and/or the State of Gujarat. We were quite disturbed with the stand which the State Government adopted and we found that the State Government was not ready and willing to takeover the responsibility of all the 148 students to ensure their admissions in the appropriate M.B.B.S. Course in recognized medical colleges of the State. We invited attention of learned Government Pleader appearing for the State Government to the Essentiality Certificate which was issued by the Government of Gujarat in favour of respondent no. 8 College dated 23rd September 2008, wherein it has been stated as under :-
"Adequate clinical material as per the Medical Council of India norms is available. It is further certified that in case the applicant fails to create infrastructure for the medical college as per MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College with the permission of the Central Government."
We are also informed that in the Essentiality Certificate it has been stated that respondent no.8 - College shall give bank guarantee worth Rs.2 crores in favour of Government of Gujarat as per Government Resolution No.MCG-1097-2454-J dated 20th June 2001, which has also not been complied with.
In the above view of the matter, we had to remind the State Government that when the State Government, while giving permission to the private medical college in question, has made it clear at clause 11 that in the event the institution is closed, the State Government will ensure that the students will be accommodated in other medical colleges. We, therefore, asked the State Government to takeover the responsibility of the students already admitted in the college with the permission of the Central Government. We also directed the State Government including the Principal Secretary, Health Department of the State to give the names of Government Medical Colleges in which the said 148 students can be accommodated.
Thereafter, the State Government, through its Under Secretary, Health and Family Welfare Department, once again filed an affidavit stating that the subject matter has been considered at the highest level and the Government took a decision that 148 students can be accommodated in six recognized Government Medical Colleges in the State of Gujarat, which reads as under :-
Sr. No. Names of Recognised Government Medical College
1.
Medical College, Bhavnagar
2. M.P.Shah Medical College, Jamnagar
3. P.D.U.Medical College, Rajkot
4. Medical College, Vadodara
5. Government Medical College, Surat
6. B.J.Medical College, Ahmedabad In the said affidavit, it was further averred as under :-
"I respectfully say that as per the Essentiality Certificate issued to K.J.Mehta Hospital and Institute of Medical Sciences, Amargadh, Bhavnagar, the State Government is undoubtedly responsible to take care of 148 students of the said college which has been recently denied permission by the Medical Council of India. However, if the State Government is allowed to accommodate the said 148 students among 6 recognised Government Medical Colleges and 4 recognised Self-financed Medical Colleges on practical basis as detailed hereunder, the same would ensure that there is no crushing burden on the infrastructure facilities of the State Government-run Medical Colleges only and the burden is evenly distributed amongst practically all the Medical Colleges of the State, while taking care of the interest and career of the said 148 students. Such an arrangement was in fact conceived by the Hon'ble Supreme Court in case of Asheesh Pratap Singh v/s. M.Sachdeva, reported in AIR 2003 SC 2125, where the students of Azamgarh Medical College in U.P. were considered for accommodation in both, the Government-run Medical Colleges as well as the Private-run Medical College. Even in case of Valia Medical College, the students were allotted in both, Government Medical College and Self-financed Medical College.
I further respectfully say that on 25.7.2011, the State Government called a meeting for holding consultation with the representatives of the managements of all 5 recognised Self-financed Medical Colleges of the State. I respectfully say that during the course of the said meeting, the managements of the said 5 recognised Self-financed Medical Colleges have orally and willingly agreed to accommodate additional students as requested by the State Government. In view of this, the State Government now proposes to accommodate the aforesaid 148 students of K.J.Mehta Hospital and Institute of Medical Sciences, Amargarh, Bhavnagar in the following Medical Colleges in the State, out of which the first 6 are recognised Government Medical Colleges, whereas the remaining 4 are recognised Self-financed Medical Colleges.
Sr. No. Name of Medical College Proposed number of students
1. Medical College, Bhavnagar (Government) 20 + 7 = 27
2. M.P.Shah Medical College, Jamnagar (Government) 15
3. P.D.U.Medical College, Rajkot (Government) 15
4. Medical College, Vadodara (Government) 15
5. Government Medical College, Surat (Government) 15
6. B.J.Medical College, Ahmedabad (Government) 6
7. Surat Municipal Institute of Medical Education and Research, Surat 15
8. Smt.N.H.L.Municipal Medical College,Ahmedabad (Self-financed) 15
9. Pramukh Swami Medical College, Karamsad (Self-financed) 10
10. C.U.Shah Medical College, Surendranagar (Self-financed) 15 The Medical Council of India also filed an affidavit through its Secretary Dr.Sangeeta Sharma, wherein the Medical Council of India stated as under :-
"It is further submitted in light of the decision rendered in AIR 2003 SUPREME COURT 2125 "Asheesh Pratap Singh versus M.Sachdeva, Medical Council is ready to accommodate the students in some other State Government recognized Medical College within the State. For the said purpose, the State Government is required to make a proposal before the Medical Council of India for increase in the intake capacity for accommodating the students of K.J.Mehta Medical College. It is pertinent to note that till date the State Government has not come out with any such proposal before the Medical Council of India.
It is further submitted that in the present case the State Government has to clarify the position of accommodation of such students in other State Government recognised Medical College together with the necessary proposal for the said colleges.
That subject to proposal of the State Government, the students shall be adjusted against vacant seats and if the students so adjusted exceeds the intake capacity of existing recognized colleges already approved by Central Govt/Medical Council of India, a formal proposal for the purpose of increasing the intake capacity of existing recognized colleges for the students of K.J.Mehta Medical College only shall be forwarded to Medical Council of India and pursuant to the order of this Hon'ble Court, necessary permission for increase of intake capacity under Section 10A of I.M.C. Act, 1956 for period confined to the completion of the studies of the students of K.J.Mehta Medical College shall be granted.
That it is respectfully submitted that the process of admission has to be completed before the beginning of the session and in no case admission is permissible after 30th September 2011 in terms of judgment of the Hon'ble Supreme Court in the case of Mridul Dhar Versus Union of India and others (2005)2 SCC 65."
Taking into consideration the stand taken in the affidavit-in-reply filed by the State Government as well as the Medical Council of India, the matter was discussed further. It was decided that 148 students will be accommodated in 6 Government Medical Colleges or 6 Medical Colleges of the State Government and 4 recognized Self-financed Medical Colleges. Accordingly, we allowed the State Government to forward its proposal in terms with the statement made at paragraphs 4 and 6 of the affidavit filed on behalf of the State by the Under Secretary, Health and Family Welfare Department. We also requested the Medical Council of India to convene a meeting of the Board of Governors and take appropriate decision in the matter. Other modalities like deposit of fees, etc. were also discussed.
In spite of the fact that the State Government as well as the Medical Council of India made their stand clear as regards accommodating 148 students in different recognized medical colleges in the larger interest of the students, the respondent no.8 - College adopted a very obstinate stand and attitude even being conscious of all the shortcomings against them.
We are constrained to observe that not even for a moment they have thought of protecting the interest and the career of 148 students. They opposed this petition tooth and nail and put forward the following contentions :-
"1.
The decisions dated 15.07.2010 and 22.09.2010 of the Medical Council of India and the reports dated 18.08.2010 cannot be considered having regard to the decisions rendered by the Honourable Delhi High on 13.08.2010, on 14.09.2010 and 25.10.2010. The reference to the contents of the said decisions and reports is, therefore, impermissible.
2. The report dated 21st and 22nd June which has referred to in both the decisions dated 15.07.2010 and 22.09.2010 if taken into consideration, it would be evident that the college was required to be inspected taking into consideration the requirement for 1st renewal, however the inspectors applied the norm for 2nd renewal. If the same report is taken as it is and the norms for 1st renewal are applied, the college is completely complaint free and was entitled to grant of renewal.
3. The petitioner students are not right in cotending that the college did not have the (1) basic infrastructure, (2) teaching staff and (3) hospital for the purpose of imparting education to them in accordance with the regulations of the Council. The reference to the letter is misconceived. The same refers to inspection for grant of 2nd renewal of third batch. The requirements for the said second renewal are distinct. The college was having the requisite staff, infrastructure and hospital for the purpose of imparting education to the petitioners. Even in respect of the 2nd renewal of third batch, the Answering Respondent has applied to the Medical Council of India for the purposes of inspection.
4. The petitioner students are not right in insisting for transfer to other government recognized colleges when the Answering Respondent and the State Government have further proposed that a committee be constituted for the purpose of supervising the administration of the college and has assured to provide all assistance to the committee. In similar circumstances and considering the nature of obligation of the State Government in terms of the Essentiality Certificate, this Honourable Court in the matter of Kesar Sal Medical College, Ahmedabad had provided for constitution of the Committee and the college had continued to impart the education to the admitted students. It is submitted that similar order may be passed in the present case. The contention of the petitioner students that in view of the Essentiality Certificate issued the State has to transfer the students in other Government recognized colleges is therefore misconceived. The insistence only establishes the motive of the students to obtain admission in Government recognized colleges where fees are subsidized and where the petitioners would otherwise not have obtained admission on merit. The Answering respondent has assured to provide the necessary finances as required and therefore the reference to the bank guarantee is unwarranted. There is in existence a bank guarantee in favour of the MCI and upon permission being granted by the Charity Commissioner the Bank Guarantee in favour of the State Government will also be issued.
5. It is submitted that the petitioners have made an attempt to indicate that there is vacancy in the Government colleges. It is submitted that the petitioners have taken the number of failed candidates in the first year and considered the seats as vacant seats for the second year. It is required to be brought to the notice of the Court that the students who fail in the first year have an opportunity to appear in the supplementary examinations which are conducted every six months and those who pass the examination would commence their education in the second year which batch of students is popularly known as the minor/repeater batch. At any given point of time the total number of students enrolled in the college is required to be considered for the purpose of intake capacity. Therefore such seats cannot be treated as vacant seats and petitioners cannot claim to seek admission against such seat. If admissions are granted the same would directly affect the intake capacity of the concerned college.
6. It is submitted that accommodating the petitioner in the existing Government colleges would amount to making an increase in the intake capacity of the said college. It is submitted that intake capacity of a college is determined by the Government of India (Now Board of Governors) on the basis of the recommendations of the Medical Council after following the procedure prescribed under Section 10A of the Indian Medical Council Act, 1956. It is well settled that the said procedure cannot be by-passed."
They have relied on the following case-laws :-
K.S.Bhoir v/s. State of Maharashtra (2001)10 SCC 264 : Para 11 to 15 State of Punjab v/s. Renuka Singla (1994)1 SCC 175 : Para 8 Medical Council of India v/s. State of Karnataka (1998)6 SCC 131 : Para 30 Medical Council of India v/s. Rajiv Gandhi University of Health Sciences (2004)6 SCC 76 : Para 13 and 14 P.C.Kesavan Kuttynayar v/s. Harish Bhalla (2003)8 SCC 490 : Para 17 and 18 Vinay Shankar v/s. Director General of Health Services (1991)2 SCC 321 :
Para 2 to 5.
On 25th October 2010 the Delhi High Court passed a consensus order in Letters Patent Appeal No.661/2010 and CM No.16498/2010 vide judgment and order dated 25th October 2010 and gave an opportunity to the College to take rectification measures and make good all the deficiencies and to impart education to first batch of students though the students were not party to the said petition. In the said order, the Medical Council of India was directed to inspect the College for renewal of permission for the academic year 2011-2012, and accordingly on 20th October 2010, addressed a letter to respondent no.8 - College to submit requisite documents for the inspection of infrastructure, etc. However, on 30th January 2011, respondent no.8 - College informed the Medical Council of India that they have not been able to meet with the requisite infrastructure requirement for the second renewal and the College would inform the Medical Council of India for carrying out inspection as and when the same would be ready. That day has never come. It is pertinent to mention at this stage that even for the academic year 2011-2012, the Medical Council of India has refused the permission for further renewal. The team of Medical Council of India, during the course of inspection on 21st June 2010, 18th August 2010 and 22nd September 2010, noticed and recorded large scale of deficiencies at respondent no.8 - College. It is very unfortunate to note that there was no teaching staff for the second year M.B.B.S. Course as contemplated under the Minimum Standard Requirements for Medical College for 150 Admissions Regulations, 1999. Against the statutory requirement of 25 Lecturers as Professors/Assistant Professors/Associate Professors, only 8 Lecturers were available, and that too, out of 8, 6 of them were found to be permanent Professors of S.B.K.S. Medical College of Vaghodia, Vadodara.
We cannot also ignore a very important fact in the interest of the students. Section 10A of the Indian Medical Council Act, 1956 provides for permission for establishment of new medical college. Sections 10A, 10B and 11 relevant for the purpose of this matter, are reproduced hereinbelow :-
"10A.
Permission for establishment of new medical college, new course of study.-- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, --
(a) no person shall establish a medical college; or
(b) no medical college shall --
open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
10.B. Non-recognition of medical qualifications in certain cases. -- (1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college shall be a recognised medical qualification for the purposes of this Act.
(2)Where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act.
11. Recognition of medical qualifications granted by Universities or medical institutions in India. -- (1) The medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act.
(2)Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date."
Reading all the three sections referred to above makes the position very clear that each medical college is obliged to provide the minimum required infrastructure, teaching and other physical facilities for running each of the medical courses in terms of the Medical Council of India Regulations. Unless the college provides the minimum required infrastructure, teaching and other physical facilities for imparting each of the medical qualifications by causing an inspection of the college by team of eminent doctors and who makes positive recommendations to the Central Government for recognition of the said medical college, the said medical qualifications would neither be said to be recognized nor would be included in the Schedule to the Indian Medical Council Act. Thus, it is clear that medical qualification granted by Universities in India is required to be recognized under Section 11(1) of the Act and the same shall only be granted to the students who have studied in a college having minimum required infrastructure, teaching and other physical facilities.
In view of the same, though we have noticed that consensus order was passed by the Hon'ble Delhi High Court permitting respondent no.8 - College to impart education to the petitioners-students, but due to lack of proper infrastructure and other facilities, no educational activity was being provided and, therefore, respondent no.8 - College cannot derive any advantage relying on the said order passed by the Hon'ble Delhi High Court. Even otherwise, in the order of the Delhi High Court, nothing is stated or clarified about the status of the first batch of the students as to whether the degree would be recognized under Section 11 of the Indian Medical Council Act and further there is no certainty of the status of the students as well as of the college, whether in future formal approval would be granted by the Central Government under the Act, more particularly, when in two successive academic years i.e. 2010-2011 and 2011-2012 the renewal permission are denied. We fail to understand that in spite of all this how can respondent no.8 - College still assert and insist that the students should not be transferred and they must be asked to continue their studies in respondent no.8 - College. We do not understand why an institution obliged to impart education wants to play with the career of innocent students. The students have already wasted their precious time in attending the classes of a college, which has miserably failed to impart necessary education in medicine, and that too, a college who has been refused renewal by the Medical Council of India for both the academic years 2010-2011 and 2011-2012. Irresponsible attitude and manipulative action on the part of the college resulted in wastage of almost six months and added misery to their sufferings which, otherwise, could have been restricted. The students have been made to run from pillar to post. The fees which they have paid is not something which every parent can afford. We know how finance is managed in this country by parents to educate their students. What sacrifices are to be made and to the extent that if a child is brilliant and outstanding, parents have gone to the extent of mortgaging their houses and pawning their jewelleries for the purpose of educating their children.
Importance of medical education need not be emphasized. Health being a basic human right, it is the duty of the State to make endevour to improve the health of the people. Without adequate number of doctors the constitutional mandate that every citizens should be provided with health facilities will be a mirage. We are at least satisfied with the stand taken by the State Government in having agreed to accommodate all 148 students in other colleges.
In Unnikrishnan, J.P. v/s. State of Andhra Pradesh, reported in AIR 1993 SC 2178, their Lordships held that education is not a trade or business, nor is it an occupation. It is more or less a mission and a vocation, and, imparting education cannot be allowed to become a commerce. In paragraph 168, their Lordships have said thus :-
"For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public."
In paragraph 169, their Lordships have said thus:-
"....Therefore, we make it clear that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. .... ...."
In the same paragraph, their Lordships have further said thus :-
"....No educational institution except a University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part-III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved - with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments, referred to hereinbefore - the following scheme which every authority granting recognition/affiliation shall impose upon the institution seeking such recognition/affiliation."
In the case of Prof. Yashpal and another v/s. State of Chhattisgarh and others, reported in (2005)5 SCC 420, the Supreme Court in paragraph 63 observed as under :-
"...What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide a high level of teaching and other facilities like well-equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not universities without any teaching facility but having the authority to confer degrees."
In the case of Asheesh Pratap Singh and others v/s. M.Sachdeva and others, reported in AIR 2003 SC 2125, the Supreme Court practically dealing with the same question with which we are confronted in the present case, resolved the controversy in the interest of students by observing as under :-
"...The main difficulty in this case has arisen because the students had been allocated to the College after they passed their entrance examination but that College did not have the necessary infrastructure and which came to be closed thereafter. The authorities are squarely to be blamed in this matter in not having ascertained the position before allocating the students to different colleges. We gave enough time to both the MCI and the Directorate General of Medical Education of U.P. to work out an appropriate solution in this regard. They have failed to do so. On one hand, the MCI takes the stand, as indicated above, while on the other hand, the stand of the Directorate General of Medical Education of U.P. is that all the seats have been filled up in the respective colleges and, therefore, it is not possible to accommodate the students now. That way, both the MCI and the Directorate General of Medical Education of U.P. have frustrated the orders of this Court by depending upon various provisions of the Act and the difficulty in having filled up the available seats in the respective colleges. It is no doubt true that the MCI should stick to the norms fixed in its Regulations and even one time increase cannot normally be granted. We find that when the students have already passed the first professional, to ask the students to take the same examination once again will be highly inequitable.
In these circumstances, we direct, on the special facts of this case :
The MCI and the Directorate General of Medical Education of U.P. to work out a solution in such a manner that all the students be accommodated in respect of whom directions have been given in these matters in respective colleges in the second professional examination.
The seats that have to be provided to these students shall be allocated in different colleges after finding out the total infrastructure available in each of the college which shall be adjusted over the time by reducing the intake in the next years so that the overall strength of the college does not get enhanced and the infrastructure is available to all the students within the intake allocated to the college. For example, if the intake of the college is 50 in the first year, all of them may not necessarily get through to the second year and so on. With resultant vacancies, as long as the admissions are within the total intake of such college though in some year/class intake is slightly less or more, the MCI shall deem that its regulations have been fulfilled.
The MCI and the Directorate General of Medical Education of U.P. shall comply with this process and make a report to this Court on 14-1-2003."
In the unreported case No.I.A. No.5 in Special Leave Petition No.18168-68A of 1994 in Baba Mungipa Medical College v. Government of Tripura, dated 3-11-1997, (since reported in AIR 1997 SC 3999), the petitioner was a private trust which established a medical college in Tripura without recognition and without rectifying the deficiencies in regard to infrastructure facilities pointed out by the Medical Council of India and they include lack of land for construction of building and lack of proper building. An attempt was made to secure judicial assent for admission of students. Rejecting the prayer made in this regard a two judge bench of the Supreme Court pointed out that the college may apply to the Medical Council for further inspection and it is for the latter to decide whether the college had all the facilities for imparting proper medical education. After perusing the report of the Medical Council of India the Supreme Court held that (at p.4000 of AIR) :
"On the facts brought out in the report, no direction can be given to the Medical Council of India or the Union of India to take any step for granting recognition to the college."
In the face of this fact situation, the Supreme Court concluded :
"....Admission of first year students to the college even before grant of recognition by the Medical Council of India or affiliation by the University was a very irresponsible step."
The contention of respondent no.8 - College that accommodating the petitioners in other Government colleges would amount to making an increase in the intake capacity of the said respective colleges, is also not sustainable in the eye of law. We do not understand as to how this contention can lie in the mouth of respondent no.8 - College. The Medical Council of India, through its Board of Governors, as we have been informed, has already taken a decision to grant formal approval to accommodate 148 students in other colleges and the Medical Council of India has already forwarded its recommendation to the Central Government.
Learned counsel appearing for respondent no.8 - College has also relied upon some judgments but we do not find it necessary to discuss them in detail keeping in mind the nature of the controversy.
In the above conspectus of the entire matter, we are of the view that this is a fit case where the following directions can be issued in exercise of powers under Article 226 of the Constitution of India:-
Consequent upon the directions issued by this Court, the State of Gujarat submitted a letter of request to the Medical Council of India to accommodate the petitioners in recognized medical colleges in the State of Gujarat. We have been informed that pursuant to the scheme submitted by the State of Gujarat to the Medical Council of India, the Board of Governors in its meeting accepted the scheme of the State Government. The Central Government is, therefore, directed to give the approval to the scheme submitted by the Medical Council of India, as required under Section 10-A(4) of the Indian Medical Council Act, 1956, within a period of 7 days from today i.e. on or before 3rd September 2011.
Respondent no.3 - State of Gujarat is directed to allocate/accommodate all 148 students in 10 recognized medical colleges of the State as per the affidavit dated 27th July 2011 filed by the State Government through its Under Secretary, Health and Family Welfare Department, Gandhinagar, State of Gujarat. The list of 10 recognized medical colleges is as under :-
Sr. No. Name of Medical College Proposed number of students
1.
Medical College, Bhavnagar (Government) 20 + 7 = 27
2. M.P.Shah Medical College, Jamnagar (Government) 15
3. P.D.U.Medical College, Rajkot (Government) 15
4. Medical College, Vadodara (Government) 15
5. Government Medical College, Surat (Government) 15
6. B.J.Medical College, Ahmedabad (Government) 6
7. Surat Municipal Institute of Medical Education and Research, Surat 15
8. Smt.N.H.L.Municipal Medical College,Ahmedabad (Self-financed) 15
9. Pramukh Swami Medical College, Karamsad (Self-financed) 10
10. C.U.Shah Medical College, Surendranagar (Self-financed) 15 The allocation of 148 students in 10 recognized Medical Colleges should be made on the basis of their merit as was prevailing at the time of admission (Joint Admission Test). The students who were placed above the merit list should be accommodated in Government Medical Colleges on the basis of rank of such colleges. Similarly, those whose position were lower in merit list should be accommodated in Self-financed Colleges on the basis of status of such college.
A copy of the list of allocation of students shall be forwarded to respective 10 Colleges with the names of students, within the aforesaid period. List of allocation of students shall also be published in newspaper and website to enable the students to get admission in their respective 2nd M.B.B.S. course or 1st M.B.B.S. course for students who have failed.
Students shall report to the respective colleges and get themselves admitted in their respective course on payment of requisite fees at the rate of fees prescribed by the Fee Committee for respondent no.8 - K.J.Mehta Medical College. During the whole period of study, students will be liable to pay fees as prescribed by private medical college in spite of the fact that many of them are admitted in Government Medical Colleges.
Those students who will be admitted in private medical colleges like (1) Smt.N.H.L.Municipal Medical College, Ahmedabad (Self-financed); (2) Pramukh Swami Medical College, Karamsad (Self-financed); and (3) C.U.Shah Medical College, Surendranagar (Self-financed), they will pay fees as prescribed for recognized Self-financed Colleges.
Once the students come out successful from their respective subsequent allocated colleges, if so required under the law, it should be mentioned that they have passed 1st M.B.B.S. from respondent no.8 - K.J.Mehta Medical College which was recognized at the relevant point of time and subsequently from the allocated recognized medical college.
Respondent no.8 - College shall handover/ transfer all the documents, namely, (i) leaving certificate, (ii) bonafide certificate and (iii) marksheet of 1st M.B.B.S. to the petitioners - students and/or to transfer the same against the allocation/accommodation of the students in 10 respective colleges.
Respondent no.8 - College is directed to refund the fees if paid by each of the students of 2nd M.B.B.S. course to the tune of Rs.1,37,000=00 with 8% interest, to the petitioners-students within a period of three months from today. The College is also directed to refund the N.R.I. fees if paid by any of the N.R.I. students, as per the statement made at the Bar by learned senior counsel appearing for respondent no.8 - College.
The State Government is directed to implement the allocation of the students immediately in different colleges as early as possible but not later than 30th September 2011.
If there is any genuine difficulty at the end of any student to get himself/herself admitted in any one of the 10 colleges by 30th September 2011, the same may be considered sympathetically.
With the aforesaid observations and directions, we dispose of the petitions accordingly with no order as to cost.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) Direct service permitted.
Counsel for respondent no.8 - College prays to stay the operation of the judgment passed today. But, in view of the reasons given in the said judgment and taking into consideration the academic career of the students, we reject the prayer for stay.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) /moin Top